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New use-of-force rules that limit when weapons can be fired were issued Friday for Border Patrol agents, who have been under increasing criticism for their roles in more than 40 deaths since 2005.

Border Patrol Chief Michael Fisher told agents not to shoot at moving vehicles that don’t pose a deadly threat, not to purposely place themselves in the path of moving vehicles and to avoid situations in which they have no alternative to using deadly force against rock throwers.

The Border Patrol and Customs and Border Protection also publicly released the full text of their use-of-force policies, which had been secret until a copy was leaked to the media in January.

Agency officials have been under growing public pressure to address a lack of transparency and accountability in cases of questionable use of deadly force by agents who have been criticized for shooting at people in Mexico who were throwing rocks at them across the border fence.

An investigation by The Arizona Republic in December found Border Patrol agents and CBP officers had been involved in at least 42 use-of-force deaths since 2005, with many of the cases cloaked in secrecy. In none of these cases are any agents known to have faced discipline or consequences, even in cases that appear questionable, such as when agents shot unarmed teenagers in the back.

Critics were pleased with Friday’s announcement, but many said it was not enough.

Molina, the American Civil Liberties Union and others called for the CBP to release an unredacted copy of a critical review of its use-of-force policies by the Police Executive Research Forum, a law-enforcement research organization.

She said that the forum is the gold standard for police agencies and that “the public has a right to know what these recommendations were.”

Fisher’s directive follows current Homeland Security guidelines, which hold that agents should use deadly force only when they believe, based on “the totality of the circumstances,” that the force used against them poses imminent danger of death or serious injury to them or another person.

But Fisher’s directive also provided more detailed guidance in two areas:

“Agents should not place themselves in the path of a moving vehicle or use their body to block a vehicle’s path,” he wrote. In rock-throwing incidents, the directive said, “agents should avoid placing themselves in positions where they have no alternative to using deadly force ... (and) should obtain a tactical advantage in these situations, such as seeking cover or distancing themselves from the immediate area of danger.”

The directive does not address how use-of-force incidents are investigated, or the fact that the CBP doesn’t release the names of agents involved in deadly incidents and doesn’t release the outcomes of its internal investigations or any actions it takes.

Review ordered in Jan.

New Homeland Security Secretary Jeh Johnson ordered a review of the use-of-force policies in early January, with the CBP and the Border Patrol examining potential changes since then.

The number of people killed by the Border Patrol since 2005 had risen to at least 44 as of Friday. Those include eight incidents in which agents fired across the border into Mexico and killed rock throwers.

In one of the most widely publicized of those deaths, in October 2012, an agent firing through the border fence into Nogales, Sonora, shot teenager Jose Antonio Elena Rodriguez 10 times in the back and head.

Two witnesses on the Mexican side said the youth was just walking down the street and was shot after several other people ran past him away from the fence.

Reached in Mexico on Friday, his mother, Araceli Rodriguez, said, “If this helps some other youth from being shot, that’s good. But I still want to know who killed my son and what they’re doing about it.”

The deaths include a highly publicized case near San Diego in September 2012 in which a Border Patrol agent shot to death Valeria Tachiquin-Alvarado, a U.S. citizen, as she was trying to drive away in her car.

In a lawsuit, Tachiquin-Alvarado’s family has charged that the agent needlessly placed himself in front of the vehicle.

A long fight

Two years ago, members of Congress called on Homeland Security’s Office of Inspector General to investigate the CBP’s use of force after a PBS documentary aired cellphone video that showed CBP officers beating and firing five stun-gun shots at a prone, handcuffed migrant, killing him.

The OIG report was heavily censored before it was released last fall. The summary released to lawmakers did not include the criticisms or recommendations made independently by the Police Executive Research Forum.

But Fisher, at the time, said he would not agree to any restrictions on agents’ abilities to use deadly force to protect themselves. Last month, the Los Angeles Times reported that the deleted portions criticized agents for stepping in front of cars to justify shooting at them.

Molina said the new directives are a welcome change in tone from Fisher, who declared last year after the OIG report that agents would continue to consider rocks lethal weapons justifying deadly force.

Shawn Moran, vice president of the National Border Patrol Council, called the forum’s criticisms “a misinterpretation of the situations in which agents used deadly force.” He said Fisher’s directive amounts to “a reminder to agents to seek alternatives.”

“We don’t view it as an outright restriction on agents’ use of deadly force,” Moran said.

The Twitter account for the Border Patrol union tweeted, just after the guidelines were released, that “Border Patrol agents must not hesitate to defend themselves when being attacked.”

Fisher said that the CBP is “in the final stages” of updating its use-of-force handbook and that it will begin union negotiations shortly.

The last union negotiations over changes in the policy lasted from 2007 until the fall of 2010. Moran said the union hasn’t seen any specific proposals yet, but added, “We would fight any restrictions on the ability of agents to use force to defend themselves.”

Fisher noted in his directive that, since 2010, agents have been assaulted with rocks 1,713 times. A few agents have been seriously injured, but none has been killed.

In a statement accompanying the directive, Fisher said that, since 2010, agents have used deadly force 43 times, resulting in 10 deaths.

However, data compiled by The Republic records 26 deaths involving agents since 2010. Two of those involved CBP officers. The CBP didn’t immediately respond to requests for clarification.

Mixed reactions

U.S. Rep. Raúl Grijalva, D-Ariz., one of the members of Congress who called for the OIG investigation, called Fisher’s directive and the release of the policy “a first step and a recognition of the fact that this is a matter of growing public importance.”

But he added that the CBP and the Border Patrol, as the nation’s largest law-enforcement body, “should follow the same requirements for transparency and accountability that other federal agencies and police forces have to follow.”

U.S. Sen. Jeff Flake, R-Ariz., said Border Patrol agents have a difficult job that requires judgment calls on a case-by-case basis. But he said that it is appropriate to review past incidents that involved deadly force, particularly given the significant number, and that oversight is justified.

“Having clearer guidance is probably a good thing,” Flake said. “There are situations that will come up where they will just have to use their best judgment. That’s the nature of the job. There will be mistakes made and decisions made in the spur of the moment. I feel for border agents there who have to make those decisions.”

Chris Rickerd, policy counsel for the ACLU in Washington, D.C, said the policy change is not enough.

“It is largely a restatement of existing policy, which is a shame because, clearly, existing policy isn’t working,” he said

He called for an independent investigation of every use-of-force case in the past five years.

“The administration should also initiate an independent inquiry into all cases when CBP officials used deadly force over the last five years, so the public can understand why the nation’s largest law-enforcement agency has been failing to follow best law-enforcement practices ... with dozens of tragically fatal results.”

Eugene Iredale, a San Diego lawyer representing several families suing the CBP after their family members were killed by agents, said dozens of people would still be alive if the Border Patrol had changed these policies years ago.

“This is a welcome development. But why wasn’t it done five years ago or 10 years ago?” Iredale said.

He doesn’t believe that agents should never fire against rock throwers, because a rock can be a dangerous instrument, but he said it’s critical to take into account the circumstances surrounding the rock throwing.

Iredale represents the family of Tachiquin-Alvarado, who was killed by the Border Patrol after plainclothes agents in Chula Vista, near San Diego, tried to stop her as she entered her car.

As she drove away, a Border Patrol agent either jumped or was forced onto the hood of her Honda Accord. The agent fired 10 shots into the windshield, killing Tachiquin-Alvarado, a 32-year-old mother of five.

Iredale said if agents at the scene in Chula Vista had followed the new policy, Tachiquin-Alvarado would “absolutely” be alive today. He said he believes the agent jumped in front of the car as a pretext to arrest her and jumped on the car as a pretext to use deadly force.

The agent’s lawyer, Richard Tolles, said, “It is a compelling case of self-defense.“

Iredale disagrees. “That’s Valeria Tachiquin’s case right there,” he said. “I believe if they had followed this policy — do not stand in front of a car or jump onto a car — this would have never happened. ... There’s no doubt about it.”

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